Agency Vs. Independent?
by Steven C. Litz, Attorney at Law
With the proliferation of web sites which
offer "matching" services to couples and surrogates alike, I am frequently asked
which method is better for surrogacy. The answer to the question "Should I try
to find my own surrogate?" really depends on a number of factors. Even though I
run Surrogate Mothers, Inc. (SMI) I frequently assist couples who have their own
surrogate and simply need someone to do the legal work. So, while the tone of
this article will be that independent surrogacy is fraught with pitfalls, that
is based on my experience in this area for the past 13 years and not out of any
particular bias toward agency surrogacy.
If you are considering trying to find your own surrogate, you need to ask
yourself the following questions:
What am I looking for, and am I capable of being objective in trying to find it?
Infertility, as we know, is an exceptionally frustrating, emotionally
devastating time. Most people would not be able to remove themselves from the
situation long enough to objectively evaluate the qualities of a potential
surrogate. That is why most surrogate agencies offer extensive psychological
screening of their surrogates. Not only is there a qualified specialist who can
make a recommendation whether the woman is suitable, but if you are working with
an agency that has had significant experience with surrogates, the agency's
personnel also may be able to give you good advice about the woman. Unless the
potential surrogate is a friend or relative, you will be relying on your own
judgment, an evaluation which, almost by definition, is clouded by your extreme
desire to have a child. An agency does, or should, conduct significant
background checks on its surrogates. Will you? An agency interviews references?
Will you? SMI and most other agencies have a variety of checks and balances in
place to do its utmost to ensure that its surrogates are mature, intelligent,
responsible woman. Can you do the same?
How will I manage the relationship with my surrogate? The nature and extent of
interaction with your surrogate varies considerably. Some of our surrogates wish
to be very involved with their couples, others do not. One of the most important
functions we perform is trying to ensure that couples and surrogates "fit." If
you find your own surrogate each of you may have very different expectations
about how involved you will be. Will you be going with her to pre-natal visits?
Will she be calling you every week? Will she meet your family, or you hers?
These and many other relationship issues can be appropriately addressed by an
agency that has had experience in addressing such issues.
How well do I handle stress and confrontation? This is an extremely important
area to evaluate. While SMI and a few other programs have never had a woman
change her mind about relinquishing a child, surrogacy arrangements still have
conflicts. Without a neutral third party, you will have to resolve any
difficulties on your own. Can you? Perhaps a different way of thinking about
this issue involves your own relationship. For anyone who has ever been through
marital counseling, they can attest to the good it has done. Being able to have
an objective listener, being able to voice your concerns, being able to "vent,"
without the fear of being judged is immensely valuable. On countless occasions,
I have been able to listen to a couple's concerns, offer suggestions, talk to
surrogates, and resolve potentially damaging situations which, without an
intermediary, may have turned into disasters. How will you handle it when your
surrogate gets upset with you or you with her? What about the practical aspects
Will you have a contract? What should it say? I am frequently asked to "sell" my
contracts. I do not. They are invaluable to me because they are almost living
documents. I have revised them hundreds of times, based on hundreds of couples'
and surrogates' suggestions and innumerable hours of research. A doctor does not
write a prescription without first seeing a patient. And, even if you do locate
a "form contract" how will you know whether it adequately protects your
interests? What happens if your surrogate wants to abort? Or refuses? What about
her fee? Discussions about money are often embarrassing. What would you do, for
example, if your surrogate asked for all of her fee before she delivered?
Wouldn't you feel as if you had no choice? After all, if you say no, you run the
risk of alienating her. If you agree, you appear easy to manipulate. Sure, you
can fill in the blanks to any document. But, think of this situation this way:
would you invest in the stock market without talking to a broker? Why invest in
the most important decision of your life, the future of your child, indeed the
very existence of your child, without talking to an expert? If your reasons for
avoiding an agency are financial, sit down and calculate what you expect to pay.
Then, call an agency and see what they charge. While agency fees will be more,
you may be surprised that the difference is not that significant. At some point
you will have to have a lawyer anyway. Many agency fees, like SMI's, include
attorneys fees. I have never worked with a couple who found their own surrogate
who did not incur several thousand dollars of unanticipated costs. An agency
will detail exactly what those expenses will be.
These are but a few considerations, then, in deciding whether to work through an
agency or pursue surrogacy on your own. What I see as a particularly disturbing
trend is the possibility of posting your name on the internet, and attempting to
judge the quality of people who offer to be surrogates for you. At SMI, we
reject 98% of the woman who first express an interest in surrogacy. I cannot
tell you how many times people have contacted us about a woman they "found" only
to learn that she was not at all what she appeared. An agency, at least, has
criteria for assessing surrogates. The web or a classified ad has none.
Perhaps the greatest danger of working independently is that you remove the very
people who can, and should, provide the type of guidance you need. Consider
this: the surrogate agency that has had the most failures, far more than any
other program, is the one that did not screen their surrogates or their couples,
or did only minimal testing. Doesn't that speak volumes about the need for
objectivity? Surrogacy's failures result from the absence of objectivity. The
only thing more tragic than working with an agency that isn't responsible is not
working with one at all. Of course there have been many independent arrangements
which have resulted in beautiful babies, satisfied surrogates, and thrilled
couples. You may be just such a person. You may get lucky and find a perfect
surrogate, of you may have found a wonderful couple. But is it worth the risk if
Editor's Note: Steven C. Litz is the Director of Surrogate Mothers, Inc., P.O.
Box 216, Monrovia, IN 46157.